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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND VICTORIA LEYSON KRAMER v. JOTUN PAINTS, INC. : : : : : : : : : : : : : : : MEMORANDUM OPINION These related Title VII cases are before the Court on the defendant's motions to dismiss, which the plaintiffs have opposed. Neither further briefing nor oral argument is needed. 105.6 (D. Md. 2001). These cases were both commenced by complaints filed in the Circuit Court for Baltimore City close to the 90th day after receipt of the plaintiffs' notices of right to sue. Both Local Rule CIVIL NO. S 02-135 : : : : : : : : CIVIL NO. S 02-134

LAURIE M. MCCAULEY v. JOTUN PAINTS, INC.

complaints were filed on June 4, 2001 -- the day of Ms. McCauley's deadline and ten days before Ms. Kramer's deadline. On June 5,

2001, the Circuit Court issued summonses to the plaintiffs to be served upon the defendant within sixty days after the date of issue. MD. RULE 2-113 (2002). "[a] summons unserved As explained by the applicable Rule, [sixty days] shall be dormant, Id. The

within

renewable only on written request of the plaintiff."

plaintiffs failed to serve the defendant within 60 days, and the

summonses expired on or about August 5, 2001. no action until November 26, 2001, when

The plaintiffs took plaintiffs' counsel

requested reissuance of the summonses, which were reissued on November 27, 2001, and were eventually served on the defendant's resident agent on December 13, 2001. made to this Court. The defendant argues that both causes of action are timebarred because the plaintiffs failed to serve process within 120 days of the complaint, as required by FED. R. CIV. P. 4(m). More After service, removal was

specifically, the defendant argues that the expiration of the 120 days revived the running of the 90-day period in which the

plaintiffs could bring a Title VII claim, and because that 90-day period expired before process was served on December 13, 2001, these suits are barred. To support this conclusion, the defendant

cites various cases, including Arabian v. Bowen, 966 F.2d 1441, 1992 WL 154026 (4th Cir., July 7, 1992), and Frasca v. United States, 921 F.2d 450 (2d Cir. 1990). The plaintiffs have filed perfunctory oppositions to the defendant's motions, simply pointing out, and quite correctly so, that the 120-day period for service of process required by the Federal Rules does not apply to cases in which service was carried out before removal to federal court. See Eccles v. Nat'l The

Semiconductor Corp., 10 F.Supp.2d 514, 519 (D. Md. 1998).

fact, however, that the defendant improperly relies on the 120-day

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period for effecting service under FED. R. CIV. P. 4 is of no consequence. As recognized in Eccles, before removal to federal

court, state law governs service of process -- in this case, MD. R. 2-113, which provides for a 60-day period in which service must be effected before a summons expires. Eccles, 10 F.Supp.2d at 519

(citing Nealy v. Transportacion Maritima Mexicana, 662 F.2d 1275, 1282 (9th Cir. 1980); McKenna v. Beezy, 130 F.R.D. 655, 656 (N.D.Ill. 1989)). As explained below, the plaintiffs' causes of

action are barred under both federal and state service rules. The 90-day period provided for in Title VII is, at the very least, analogous to a statute of limitations and is certainly subject to principles of equitable tolling.1 Irwin v. Dep't of

1. A substantial number of cases, albeit not from the Fourth Circuit, have found that Title VII's 90-day suit-filing requirement is not jurisdictional in nature, but rather is a statute of limitations susceptible to tolling in certain circumstances. These cases glean this rule from a progression of Supreme Court cases dealing with Title VII claims: Before the Supreme Court's decision in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), most courts had concluded that the 90-day period in fact was jurisdictional in nature. E.g., Hinton v. CPC Int'l, Inc., 520 F.2d 1312, 1315 (8th Cir. 1975); Cleveland v. Douglas Aircraft Co., 509 F.2d 1027, 1030 (9th Cir. 1975). When Zipes held that the charge-filing period was not jurisdictional, courts increasingly reached the same conclusion about the 90-day suit-filing period. E.g., Rice v. New England Coll., 676 F.2d 9, 10 (1st Cir. 1982); Gordon v. Nat'l Youth World Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982). Although the Supreme Court has not explicitly so held, it has given pointed clues. In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the Court rejected an argument that the "jurisdictional" nature of the 90-day suit-filing requirement prevented tolling of the limitations period during the pendency of a motion to certify a class in an action in which the plaintiff would have been a member of the class. Id. at 349 n.3. The plaintiff filed an individual action within 90 days following the denial of class certification; this was sufficient, the Court held, because the plaintiff had not received his right-to-sue letter until after the putative class action had been filed. Id. at 353-54. Next, in Baldwin County Welcome Wagon v. Brown, the Court assumed, without explicitly stating, that equitable tolling would be applicable to the suit-filing

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Veterans Affairs, 498 U.S. 89, 95-96 (1990).

The defendant asks

this Court to find that Title VII's limitations period should not be tolled in this case, relying on federal law as follows: (1) a plaintiff has 90 days from the receipt of notice of right to sue to commence a Title VII action in either state or federal court, 42 U.S.C.

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